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February 19th, 2017

Disinherited Spouses and Children

A person’s last Will is a very important document. It sets out the Will maker’s intentions for the distribution of all of their property upon his or her death. Once the Will has been probated (proved to be valid), the executor appointed by the Will maker has the duty of paying the debts of the estate and distributing the estate in accordance with the terms of the Will. In most cases, estates are distributed to the beneficiaries chosen by the Will maker without incident or great controversy.

However, if a Will maker has failed to make adequate provision in his or her Will for the maintenance and support of a spouse, or if there is no spouse, his or her children, the Will can potentially be challenged by the spouse or children in a “will’s variation” lawsuit. In British Columbia, the Wills Estates and Succession Act [1] (WESA formerly the Wills Variation Act) allows a spouse or child (both biological and adopted children) to seek an order from the court to increase the amount they are entitled to receive under the Will.

The Supreme Court of Canada decision in the case of Tataryn v. Tataryn[2]establishes guidelines for the determination of what constitutes “adequate provision” under WESA. They include whether the Will maker has either legal obligations or moral obligations that are not satisfied by the distribution of assets established by the Will.

There may be numerous reasons why an individual chooses to try and disinherit their spouse and/or children in his or her Will or leave larger bequests to some family members to the apparent disadvantage of others. A court that is asked to make a ruling in a will’s variation lawsuit will review any evidence of those reasons together with the history of the will maker’s family to determine if the will maker satisfied his or her “moral obligation” to, for example, an adult child.

Spouses, children under the age of 19 and disabled children of any age who have not received adequate provision under a Will have the strongest claims to vary the Will because of the “legal obligation” of the Will maker to maintain and support his or her dependents.

Contact a Vancouver Estate Lawyer

If you believe that you have been unjustly disinherited, it is important that you contact a Vancouver estate lawyer as soon as possible. Legal disputes in the area of wills and estates are usually complex and there are strict deadlines that must be met. The lawyers at McLarty Wolf are committed to helping disinherited spouses and children. To discuss your case with one of our lawyers, call our office today at 604-688-9542 or send us an email at online contact form.